AMENDMENT TO CONDITIONAL WARRANT
AMENDMENT TO CONDITIONAL
WARRANT
This
Amendment to Conditional Warrant (the “Amendment”) is
entered into this ___ day of February, 2009, between Organic To Go Food
Corporation, a Delaware corporation (the “Company”), and
X.Xxxxxx L.P., a limited partnership organized under the laws of the Bahamas
(the “Investor”).
Reference
is hereby made to (i) that certain Conditional Warrant number F08-2 dated
February 27, 2008 (“Warrant”), issued to
the Investor pursuant to that certain Securities Purchase Agreement dated
February 19, 2008; and (ii) the Note Purchase Agreement by and between the
Company and the Investor dated as of February 11, 2009 (the “Purchase
Agreement”). Capitalized terms used herein but not defined
shall have the meanings attributed thereto in the Purchase
Agreement.
WHEREAS,
as a condition to the Closing under the Purchase Agreement, the Warrant shall be
amended, as set forth below.
NOW, THEREFORE, for the promises set
forth herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as
follows:
1.
Amendment
of Warrant
With effect on the Closing under the
Purchase Agreement, the Warrant is hereby amended as follows:
(a) The
opening paragraph of the Warrant shall be deleted in its entirety and replaced
by the following:
Organic
To Go Food Corporation, a Delaware corporation (the "Company"), hereby certifies
that, for value received, X.Xxxxxx L.P., a limited partnership organized under
the laws of the Bahamas or its registered assigns (the "Holder"), is entitled to
purchase from the Company such number of shares of Common Stock, calculated as
of the initial Date of Exercise, equal to twenty percent (20%) of the total
number of outstanding shares of capital stock of Company on a fully diluted
basis, taking into account the issuance of Conditional Warrant Share hereunder,
determined in accordance with the treasury stock method under United States
Generally Accepted Accounting Principles (each such share, a "Conditional Warrant Share"
and all such shares, the "Conditional Warrant Shares"),
at any time and from time to time from and after the Original Issue Date and
through and including the Expiration Date, and subject to the following terms
and conditions.
(b) In Section 1 of the Warrant, the
defined term, “Exercise Event”, shall be deleted in its entirety.
(c) In Section 1 of the Warrant, the
defined term, “Expiration Date”, shall be deleted and replaced, in its entirety,
by the following:
“Expiration Date” means
February 27, 2010.
(d) Section 4
shall be deleted, in its entirety, and replaced by the
following:
This
Conditional Warrant shall be exercisable by the registered Holder, in whole or
in part, at any time and from time to time on or after the Original Issue Date
through and including the Expiration Date. At 6:30 p.m., New York
City time on the Expiration Date, the portion of this Conditional Warrant not
exercised prior thereto shall be and become void and of no value. The
Company may not call or redeem any portion of this Conditional Warrant without
the prior written consent of the affected Holder.
2.
Miscellaneous
(a) Entire Agreement and
Amendments. This Amendment constitutes the entire agreement of
the parties with respect to the subject matter hereof and neither this Amendment
nor any provision hereof may be waived, modified, amended or terminated except
by a written agreement signed by the Company and the Investor. To the
extent any term or other provision of any other agreement or instrument by which
any party hereto is bound conflicts with this Amendment, this Amendment shall
have precedence over such conflicting term or provision.
(b) Governing
Law. This Amendment and the rights and obligations of the
parties hereunder shall be construed in accordance with and governed by the laws
of the State of California, without giving effect to the conflict of law
principles thereof.
(c) Counterparts. This
Amendment may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
[Signature
Page Immediately Follows]
2
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to Conditional
Warrant to be duly executed by their respective authorized signatories as of the
date first indicated above.
ORGANIC TO GO FOOD CORPORATION | |||
By:
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Name:
Xxxxx Xxxxx
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Title:
Chairman and Chief Executive Officer
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X.XXXXXX
L.P.
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By:
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Xx.
Xxxxxx Xxxxxxx
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Director, Inventages Whealth Management, Inc., as General Partner of X.Xxxxxx L.P. | |||
By:
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Dr. Xx. Xxxxxxxx Xxxxxxxxxxxxx | |||
Director, Inventages Whealth Management, Inc., as General Partner of X.Xxxxxx L.P. | |||